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Wednesday, July 26, 2017
Last Updated
These terms of service, together with any documents expressly incorporated into these terms by reference, are a legal agreement between you (“You”) and (“Us”), Databiology, Inc (“Company”)., a California corporation, governing all access to and use of the Services we provide through the website at www.lab.databiology.net (the “Site”). By “Services,” we mean the services and other items we provide through the Site, including (1) the Databiology Lab services, software, reports and documentation we provide via login; and (2) the software, data or services provided by ourselves and any third parties through the Databiology Store (“Store”).
This agreement (“Agreement”) may be accepted by (1) You clicking a box indicating acceptance when it is presented to you; (2) You and Us fully executing a separate document that incorporates this Agreement; or (3) You accessing or using any part of the Services. If You are accepting on behalf of another person or entity, then You represent and warrant that You have the authority to bind that person or entity, You have read and understood this Agreement, and You agree on behalf of that person or entity to this Agreement (and, other than these representations, “You” refers to that person or entity).
This Service is a pre-release offering, and may not operate at the level of performance of a commercially available product offering. The Service may be substantially modified prior to first commercial release, or at Company’s option may not be released commercially in the future.

1. Privacy Policy

Please refer to our Privacy Policy, available at https://docs.databiology.net/tiki-index.php?page=Databiology+Lab+Privacy+Policy (the “Privacy Policy”) for information on how we collect, store and use your biomedical data and other information that You provide to us. You shall comply with the Privacy Policy and shall not use or disclose to third parties the information we provide to You via login at the Site. You warrant to Us that you have the right to provide biomedical data to Us, and we have the right to use the biomedical data in the manner described in this Agreement; and You have provided all necessary notices to, and obtained all necessary permissions and informed consents from, the legal owners of the data, including, and where needed, human subjects from whom samples were taken and / or the owners of nonhuman samples You have obtained, related to the use of the biomedical data in the manner described in this Agreement, including without limitation in compliance with all applicable privacy and other laws.
Databiology is not a Covered Entity (“CE”) as that term is defined in the Health Insurance Portability and Accountability Act of 1996 and its related regulations set forth in Parts 160, 162, and 164 of Title 45 of the Code of Federal Regulations (collectively, “HIPAA”). Databiology offers features that enable compliance with HIPAA by users who wish to upload, store, or otherwise transfer “protected health information” (“PHI”), as defined in HIPAA, using the Site. We recommend that users who desire to upload, store, or otherwise transfer PHI using the Site execute a separate HIPAA Business Associate Privacy Agreement (a “BA Privacy Agreement”) with Databiology prior to uploading, storing, or otherwise transferring PHI using the Site. The uploading, storing, or transferring of PHI using the Site by users that have not implemented all available compliance features is strictly prohibited. You acknowledge that this may require You, in some instances, to anonymize biomedical data uploaded to the Site. You further agree to indemnify and hold harmless Databiology of and from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, arising out of or relating to the biomedical data You are uploading, storing, or transferring of PHI using the Site.

2. Security

We use Transport Layer Security (TLS) encryption on all our web pages where biomedical data is collected to protect its transmission over the Internet. We recommend that You upload biomedical data via https encrypted S3 protocol. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your biomedical data that are consistent with industry standards for services similar to the Services, including encryption of your biomedical data while in transit.

3. Fees

Prices for the Services (“Fees”) are stated on the Site at https://docs.databiology.net/tiki-index.php?page=Databiology+Lab+Pricing Where we have made an offer that differs or amends the published pricing, the terms and conditions of the offer take priority to the published pricing for the period of the offer. All Fees are nonrefundable except as expressly provided otherwise in this Agreement. Any agreed upon One-time Fees are due, in advance of obtaining access to the Service. Usage-based or periodic Fees will be invoiced monthly, and You will pay in full any amounts properly invoiced and due within the period specified on the invoice. Any sums not paid when due will accrue interest from the date due until actually paid at rate of five percent (5%) per month or the highest rate allowed by law, whichever is less. You will be responsible for all taxes related to the Fees or your use of the Service, excluding taxes based on our net income. We may, at our option, change the Fees; provided that we will notify You in advance of any material changes to the Fees.

4. Services License

4.1. License

We grant You a non-exclusive, non-transferable, non-sublicensable, limited right, to (1) access and use the Site and Services for your internal research purposes only. This agreement does not give You the right to use the Site or Services to provide services, commercial or otherwise, to any third party. If your use case does not match this description, please contact us to discuss the possibility of using our Services in support of your activities. Your rights to access and use the Site and Services are subject to and conditioned on your compliance with all of the terms and conditions of this Agreement and any terms applicable to content from the Store.

4.2. Restrictions

You may use the Services solely in accordance with this Agreement and applicable laws and government regulations (including without limitation HIPAA, and export control laws and regulations). You will not, and will not permit any third party to: (1) translate, modify, adapt, enhance, decompile, disassemble or reverse engineer the Services or otherwise determine or attempt to determine source code or protocols from the executable code of the Services or create any derivative works based upon the Services; or (2) extract ideas, algorithms, procedures, workflows or hierarchies from the Services or otherwise use the Services for the purpose of creating another product or service as to do so would infringe Databiology IP , Trade Secrets and other commercial licensing conditions. You warrant that You will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Site and Services.

5. Databiology Store

5.1. Third-Party Providers

Our Site may contain links to third party sites or services or to third parties (other than Databiology) that offer products or services related to the Services, including Apps and Data (we refer to such third parties in this agreement as “Third-Party Providers”). We make no representation, warranty or promise regarding such Third-Party Providers or the products or services they may offer, whether or not such products or services are presented in the Databiology Store pages or on our Site. We include such links and information only as a convenience and without implying any endorsement of the Third-Party Provider. You should review applicable commercial terms and policies, including privacy and data gathering practices, and should make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any Third-Party Provider.

5.2. Apps

If You wish to acquire and use third party Apps, please visit the Databiology Store. Any purchase through the Databiology Store page is subject to the terms and conditions established by the Third-Party Provider and presented in connection with that purchase (typically this is an “End-User License Agreement,” so we refer to it in this agreement as a “EULA”). You agree that You are purchasing the add-on from the Third-Party Provider, with appropriate novations to enable Databiology acting as a service provider for the Third-Party Provider in providing the add-on to You, and that the Third-Party Provider, and not Databiology, is solely responsible for the add-on and any promises in the EULA. You also agree that Databiology is a third-party beneficiary of the EULA and that, upon your acceptance of its terms, we will have the right to enforce the EULA against you.

You warrant that You have all required consents, licenses and authorizations to use any Third-Party Provider software that You are accessing through the Site and that You will fully indemnify Databiology against any and all Third-Party Provider IP infringement claims made as a consequence of your use of CIAO features while using the Site.
If any infringement or potential infringement is identified, You will stop using that software and notify Databiology immediately. Should Databiology be told of, or identify any such infringement or potential infringement, then Databiology will with immediate effect suspend access to and use of the Site until such infringement is resolved. In all cases You will fully indemnify Databiology against all and any such claims.

5.3. Data

You warrant that You have all the required consents, permissions, authorizations, approvals to use the data You are uploading to the Site, including those of any originating 3rd party data sources and /or data providers from whom you have obtained such data. You accept You are solely liable for any breach of this warranty and that You will further fully indemnify Databiology from all consequences of any such breach.

If any breach is identified by You, You will notify Databiology immediately upon which Databiology will block access and the use to such data. If Databiology discovers such a breach or potential breach, then your access and use the Site and the data will be suspended until such breach is remedied.

5.4. User Data and Apps

If You install or enable an add-on for use with Services, You acknowledge that we may allow those Third-Party Providers to access your User Data as required for the interoperation of the add-on with the Services. We shall not be responsible for any disclosure, modification or deletion of User Data resulting from any such use of Apps or access by Third-Party Providers.

6. Ownership

6.1. Intellectual Property

Except as expressly stated, this agreement does not grant either party any rights, implied or otherwise, to the other’s intellectual property or trade secrets. All Intellectual Property Rights in Your data remain with You or the data source or provider from whom You were granted access to the Data. Databiology own all IP Rights, including all trade secrets, in the Site, the Services (including CIAO and Apps), our trademarks, and Our Data. Subject to our IP Rights in the preceding sentence, as between Us, You own all IP Rights in anything You develop using CIAO, including Your Software, save for any inbound IP that You have obtained the appropriate licenses or consents to use. We welcome your suggestions and feedback on how to improve the Services. If you provide any suggestions, feedback, or improvements to the Site, and Services, we will have the right to use and have others use such suggestions, feedback, and improvements for any purpose. The Site, Services, and Our Data are commercial items, and if they are being used by or on behalf of the U.S. Government, then the U.S. Government’s rights in them will be only those specified in this agreement, consistent with FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable.

6.2. Data Ownership

The ownership of the data You upload to the Site and all title in and to it remains with the originating data source or provider save for any licensing rights that have been legally granted to You or the data custodian from whom You have obtained such data. Any derived data rights are governed and dictated by such data ownership agreements You have in place and You fully indemnify Databiology against any IP infringement however caused by your use of such data.

7. Termination

7.1. Termination for Convenience

Either Party may terminate this Agreement for any reason with 1 day written notice.

7.2. Termination for Inactivity

We reserve the right to terminate the Services for inactivity, if, for a period exceeding 60 days, You fail to login to the Services.

7.3. Termination for Cause

By Either Party
Either party may terminate this Agreement for cause upon 10 days notice to the other party if there is a material default or breach of this Agreement by the other party, unless the defaulting party cures the material default or breach within the 10-day notice period. Non-payment of any service or other fees due to Databiology is a material breach.
By Us
We may terminate this Agreement for cause: (A) if we believe in our good faith judgment that continuing to provide the Services could create a substantial economic, legal or technical burden or a material security risk for Us, (B) in order to comply with the law or requests from government entities, or (C) we determine that the use of the Services by You or any end user or our provision of the Services to You or any end users has become impractical or unfeasible for any commercial, legal or regulatory reasons.

7.4. Effect of Termination

If this Agreement is terminated, we may, without limitation of our other rights and remedies, withhold further performance of obligations under this Agreement. Upon termination or expiration of this Agreement or any other binding agreement between You and Us for any reason: (1) all applicable licenses and other rights granted by Us to You will immediately terminate; (2) You will lose access to any data and we will have no obligation to maintain any, and will have the right to delete, all data related to the expired or terminated Agreement and we will have no further obligation to make such data available to You. Sections 1 (Privacy Policy), 3 (Fees), 4.2 (Restrictions), 5.2 (Apps), 5.3 (Data), 6 (Ownership), 7 (Termination), 8 (Warranties), 9 (Indemnification), 10 (Limitation of Liability), and 11 (Miscellaneous) will survive any termination or expiration of this agreement.

8. Warranties

To the fullest extent permitted by applicable law, we disclaim all warranties with respect to the Site, Services or related materials and services, whether express or implied by operation of law, representation statements, or otherwise, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, noninfringement, or that the Site, Services, or related materials or services will be error-free, reliable, complete or secure. each party will be solely and individually responsible for complying with all laws and regulations relating to its respective business operations.
Without limiting the generality of the foregoing, You agree that we are providing a service that is intended only to assist You in your own research and that You are solely responsible for (and we assume no responsibility and will have no liability of any kind for) the decisions made based on use of our Site, Service, or related materials and services, or any effects that may result from such use. We make no warranties to any third party. We will not be liable for any deficiency in performing under this Agreement if such deficiency results from your failure to provide complete and accurate information or other cooperation reasonably necessary for our performance hereunder (including without limitation the provision of biomedical data).

8.1. Availability; Backups

We may use third party service providers to provide the Services. We currently store all Biomedical data in IBM Bluemix, and we reserve the right to substitute an alternate qualified service provider at any time. We make no representations or warranties regarding the IBM Bluemix service, its durability, or availability. For more information on the IBM Bluemix service and its performance standards, please see the IBM Bluemix site. You agree that we will have no responsibility (or related liability) for backing up any information that You provide to Us.

8.2. Initial Trial Services

We may offer, for no fee, a free trial of our services for up to eight weeks for pre-release versions of non-generally-released services. such items are provided “as is” and, to the fullest extent permitted by applicable law, we disclaim all warranties of any kind, whether express, implied, statutory or otherwise, including without limitation warranties of merchantability, fitness for a particular use and non-infringement.

9. Indemnification

9.1. Our Indemnity

We will defend, indemnify and hold You harmless against any liabilities, expenses, or damages arising from, and to the extent not covered by your indemnity under this Agreement, any third party claim brought against You alleging that your use of the unmodified Site or Services, as made available by Us and used in accordance with this Agreement infringes U.S. patent or copyright or misappropriates the trade secrets of a third party. In the event of a claim or threatened claim under this Section, we may, at our sole option, (a) revise the items so that they are no longer infringing, (b) obtain the right for You to continue using the allegedly infringing items or (c) terminate this agreement upon 10 days notice and refund You the Fees applicable to the remaining portion of any Service term so affected or provide an offset for the loss of functionality.

9.2. Your Indemnity

You will defend indemnify and hold Us harmless against any liabilities, expenses, or damages arising from any third party claim brought against Us in connection with any breach by You of the terms of this Agreement or otherwise related to your Biomedical data, Apps or use of the Services.

9.3. Procedures

The party entitled to be indemnified (the “Indemnified Party”) will give prompt written notice to the other party (the “Indemnifying Party”) of any claim for which indemnification may be required under this Agreement. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except if and to the extent that such failure materially and adversely affects the ability of the Indemnifying Party to defend the applicable claim. If the Indemnified Party notifies the Indemnifying Party of any claim asserted by a third party against the Indemnified Party that the Indemnifying Party acknowledges is a claim for which it must indemnify the Indemnified Party under this Agreement, the Indemnifying Party will be entitled to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. Neither the Indemnifying Party nor the Indemnified Party will settle or dispose of any such matter in any manner that would adversely affect the rights or interests of the other party (including the obligation to indemnify hereunder) without the prior written consent of the other party, which will not be unreasonably withheld or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of the defense of any such suit, claim or demand, such cooperation to include without limitation using reasonable efforts to provide or make available documents, information and witnesses.

10. Limitation of Liability

The Site, Service and documentation are provided as without warranty of any kind, and Company and its licensors disclaim all warranties, express, implied, or statutory including without limitation any implied warranties of title, non-infringement of third party rights, merchantability or fitness for a particular purpose no oral or written advice or consultation given by Company its agents or employees will in any way give rise to a warranty the entire risk arising out of the use of the Service remains with recipient. Company and its licensors shall not be liable for loss of use, lost profit, cost of cover, loss of data, business interruption, or any indirect, incidental, consequential, punitive, special, or exemplary damages arising out of or related to the Service or this Agreement, however caused and regardless of the form of action, whether in contract, tort (including negligence) strict liability or otherwise, even if such parties have been advised of the possibility of such damages in no event will Company’s aggregate cumulative liability for any claims arising out of or related to this Agreement exceed the amounts actually received by or payable to Company (if any) under this Agreement during Three (3) month period immediately preceding the claim that gave rise to liability.

11. Miscellaneous

11.1. Governing Law

This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without regard to its conflict of laws principles, and will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Any legal suit, action or proceeding arising out of or relating to this Agreement will be commenced in a federal court in the Northern District of California or in state court in San Francisco County, California.

11.2. Assignment

You may not assign this Agreement to any affiliate or third party without the written consent of the Company. We will have the right to assign the Agreement to an affiliate or third party without your written consent.

11.3. Force Majeure

Neither party will be liable under this Agreement because of any failure or delay in the performance of its obligations (except for payment of money) on account of riots, fire, flood, storm, earth quake, acts of God, hostilities, Internet or other network delays or failures, power failures, unanticipated product development problems, or any other cause directly affecting such failure or delay and beyond such party’s reasonable control.

11.4. Severability and Waiver

In the event that any provision of this Agreement (or any portion hereof) is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or portion thereof) will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

11.5. Entire Agreement

Except as expressly agreed to otherwise in writing by the parties that references this Agreement, this agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.

11.6. Amendments

Except as expressly provided herein, no modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. From time to time, in our sole discretion, we may change these terms of service. We will notify You of any such changes by posting the amended terms of service on the Site at https://docs.databiology.net/tiki-index.php?page=End-user+Usage+Agreement and updating the “Updated” date and sending an email or posting a notice in your login account. By continuing to access or use the Services after we have provided You with such notice of a change to the terms of service, You are indicating that You accept the changes and agree to be bound by the modified terms of service. If the Changes have a material adverse impact on and are not acceptable to You, then you must notify Us within 30 days of our notice to You of the Change. If we cannot accommodate your objection to a Change to the terms of service, then the prior terms of service shall govern until the expiration of any then-current Service term, and any renewal will be governed by our then-current terms of service.

11.7. Independent Contractors

This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties will at all times be and remain independent contractors.

11.8. Export Controls

By using the Services, You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with your use of the Services. In particular, but without limitation, the Services may not, in violation of any Laws, be exported or re-exported (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.

11.9. System Limits

To maintain the performance, health and availability of the Services, your use of the Services maybe subject to system limits. System limits are not published and are designed to ensure that no code or processes can monopolize resources and negatively impact the Services. If a limit is reached, an error may be issued.

12. Questions and Comments

If You have questions or comments about these Terms of Service, the Privacy Policy or any other matter addressed in these terms, please contact us as follows: support at databiology.com